For months, there have been human rights or civil liberties groups sharply condemning President Barack Obama’s targeted killing program especially because he holds all the power to decide who lives and who dies, however, up until a Justice Department “white paper” on the program was leaked by NBC News, there was little discussion by US news media about the nature of the program.

The leak has now led members of Congress to at least make it appear that they are publicly interested in engaging in oversight of the program. And, yesterday, a proposal to establish a court similar to the Foreign Intelligence Surveillance Court was the focus of articles from the Washington Post, Associated Press and Reuters. It was also mentioned in a few newspaper editorials praising drones.

On Thursday, during the confirmation for John Brennan, who Obama nominated to become the next CIA chief, Sen. Angus King advocated for a court to be established that would be similar to the Foreign Intelligence Surveillance Court that authorizes requests from the National Security Agency for wiretaps:

Having the executive being the prosecutor, the judge, the jury and the executioner, all in one, is very contrary to the traditions and the laws of this country, and particularly in a situation where there is time. If—a soldier on a battlefield doesn’t have time to go to court. But if you’re planning a strike over a matter of days, weeks or months, there is an opportunity to at least go to some outside-of-the-executive-branch body, like the FISA court, in a confidential and top-secret way, make the case that this American citizen is an enemy combatant.

Brennan appeared to rebut this suggestion by saying, “A court of law is used to determine one’s guilt or innocence for past actions, which is very different from the decisions that are made on the battlefield as well as actions that are taken against terrorists, because none of those actions are to determine past guilt for those actions that they took. The decisions that are made are to take action so that we prevent a future action, so we protect American lives.”

He would not give his opinion of waterboarding being torture because he is not a lawyer, but, when asked to draw conclusions about the legality of the drone program or proposals for reform, the architect of much of Obama’s targeted killing policy was perfectly fine with giving his opinion.

The Washington Post highlighted Sen. King’s suggestion, along with the fact that Sen. Dianne Feinstein, chair of the Senate Select Committee on Intelligence, indicated she would review “a proposal to create an analogue of the Foreign Intelligence Surveillance Court to review the conduct of such strikes.”

It concluded the proposal faces two obstacles: (1) “almost-certain opposition from the executive branch to a dilution of the president’s authority to protect the country against looming threats” and (2) “the difficulty of putting judges in a position to approve the killing of individuals — possibly including American citizens — even if they have not been convicted of a crime.”

The first obstacle is an excuse to maintain and grow the imperial presidency. The second obstacle makes it clear that having a court involved may not make it “legal” because there is something ethically wrong with having an assassination or targeted killing program (as the Obama administration calls it).

The Post’s article suggested it would be hard to find a judge willing to preside over the court:

At a law conference last year, former judge James Robertson, who retired from the U.S. District Court for the District of Columbia in 2010, referred to the 2011 drone strike in Yemen that killed Anwar al-Awlaki, an American-born Muslim cleric accused of plotting attacks with al-Qaeda.

“That’s not the business of judges . . . to sign a death warrant for somebody who is on foreign soil,” Robertson said. “If you brought that case to me, I would put that case back on the wheel and send that to another judge.”

If judges are concerned about being the one tasked with deciding who lives and who dies, that does not indicate it is a power that should remain in the control of the executive. It means it is a power that, perhaps, no president or agency in the Executive Branch should be able to wield.

The Associated Press‘ quoted Democrats, who supported the idea of a FISA-type court:

“A layer of judicial review could ensure additional checks on the designation of targeted individuals and determine whether sufficient evidence has been produced,” said Sen. Mark Udall, D-Colo.

Said Rep. Adam Schiff, D-Calif.: “I don’t have in mind to redefine the circumstances in the memo” describing the legal rationale behind the strikes “but rather set up a process for prospective or retrospective analysis of how drone strikes are made.”

The American Civil Liberties Union (ACLU), which has been at the forefront of appropriately challenging how the targeted killing program operates, does not think another court needs to be established. Christopher Anders, a senior legislative counsel for the ACLU, toldReuters:

“We have courts that are fully capable and experienced” in dealing with sensitive national security matters, he said. Federal courts in Washington, New York City, and Alexandria, Virginia, routinely handle highly classified materials yet operate with more transparency and more independence than the ultra-secretive foreign intelligence court…

But, as Melvin Goodman, a former CIA analyst, noted on “Democracy Now!”, there has been “only one time where the FISA court actually disallowed an attempt by the National Security Agency to conduct warrantless eavesdropping.” He added, “Don’t expect a FISA-type court to bring some kind of legality to this issue.”

Jameel Jaffer, deputy legal director for the ACLU, said to the Post, “A better way to make the administration accountable would be to use existing courts and allow suits that challenge the legality of past strikes, similar to wrongful-death actions against police departments.” Essentially, this is what the ACLU & the Center for Constitutional Rights (CCR) are seeking to do with their lawsuit, Al-Aulaqi v. Panetta, which challenges the targeted killing of three US citizens—Anwar Al-Awlaki, Samir Khan and Abdulrahman Al-Awlaki—each killed by a drone strike.

A larger issue is that most of the targeted assassinations of people put on the kill list and targeted are not or will not be US citizens. They are more likely to be individuals the government thinks are leading members of al Qaeda or one of its affiliates. In some cases, they might not even be on the list and suffer death in a “signature strike” launched against people the US government thinks are engaged in suspicious patterns of behavior.

Placement of individuals, who aren’t US citizens, may not be as legal as one would think. From Reuters:

Geoffrey Robertson, one of Britain’s most prominent human rights lawyers, described the current U.S. drone-strike policy as “execution without trial” and “international killing (which) … violates the right to life.”

Robertson said that in his interpretation of international law, any court set up to review candidates for possible drone attacks would have to publish target lists, so that those listed would have an opportunity either to give themselves up or be able to have friends or relatives petition for their removal from the lists.

“This should be an open process,” Robertson said.

The discussion of setting up a FISA-type court seems to be limited to using it to review the placement of US citizens, but there’s a strong case to be made that foreign persons would need to be reviewed as well.

The chief problem with establishing an Assassination Court is that all these proposals call for the creation of a secret court for a covert program that could impose a further check on power, but the public would likely never know how the court was checking the executive’s power to place terror suspects on a kill list. If it functioned like the FISA court, the CIA (and perhaps even the military) would never want judge’s decisions on who to kill and not kill to be public.

Should the court be like the secret FISA court, someone from the executive would show up and tell the judge why it needed authorization. The person to be targeted would not be able to make a case for why he or she should not be targeted and assassinated. The target would not get to produce evidence that he or she was not plotting an attack or involved in such al Qaeda operations.

In conclusion, this proposal for a FISA-type court is being offered up as a quick fix to a program that is increasingly perceived as unethical or inhumane. Yet, all it would do is involve an additional player. It would not make the program any less illegal or authoritarian. That it is being described as a FISA-type court is a good indication that the program would likely still operate with the same flimsy legal basis that it operates under now. The judge would be in an untenable position where he or she would not want to second-guess claims that a person posed an “imminent threat.” The judge would likely rubberstamp all requests to place a person on the “kill list.”

Similar to the creation of a “drone playbook,” such a court would do more to further codify and institutionalize the targeted killing program than bring it in line with constitutional or international law. In that sense, the Obama Administration may end up supporting it so it can continue to execute people and maintain this idea that the world is a battlefield and there is no geographical limit to who can be killed and where they can be targeted.

38 Responses
to “What If an Assassination Court Reviewed Placement of US Citizens on the President’s Kill List?”

“What if an Assassination Court Reviewed Placement of US Citizens on the President’s Kill List?”

Assassination Court. Perfect. I’ll file that under massive oxymorons. What they are doing is a shell game. Now you see it. Now you don’t. Should these sub-human pond scum actually create this so called “court”, to review a persons “kill” status…we’ve hit the bottom of the proverbial cesspool. All they are doing here is “legalizing” murder. PERIOD. This idea redefines the word absurd.

If the hearing accomplished one thing, it was to make it very clear that the level of transparency and oversight have been insufficient.

Massive understatements notwithstanding, it also demonstrated Congress is the bona fide Big Bang of Stupidity. Every time Feinstein opened that gash in her face, she red-lined the DUMB-O-METER. In fact, I can honestly say I’ve seen the dumbest Being on the face of the planet now. Whatever else is true, she’s living proof that shit walks on two legs.

I like to bring up the late Mary’s discussion of this topic every chance I can:

Here’s one such discussion from 2011, where Mary clearly states that the U.S. Constitution prohibits Bills of Attainder (the Executive Branch killing its enemies on its own fiat, extrajudicially). All her comments in this thread and the next thread (linked to below) are topical:

Back to the point of this topic, Dick Cheney says all of Obama’s picks are wimps and scumbags. Dick wants more killing faster and better – more darkside. He will personally pilot a squadron of drones if that’s what it takes (to speed up the extra-judicial killing).

You may be right in so far as the comment could provoke a visit from the FBI, but why should “US Government officials” be exempt from consideration of the extra-judicial assassination policy already in-play by our already blood-soaked president and his party of war criminals?

” The decisions that are made are to take action so that we prevent a future action, so we protect American lives.” Well, according to Brennan we need to kill everybody because they might get pissed off at the USA and contemplate future action.

This is just lipstick on a pig. It still circumvents the due process guaranteed under the constitution. The accused has the right to see the evidence, hear his accusers and present a defense in a court of law. This just justifies the president’s disregard for the Constitution and the rule of law. Those who are supporting this are like kidnap victims who defend their captors.On “Up with Chris Hayes” this AM, Jeremy Scahill called it “Partisan Stockholm Syndrome.” I fear he’s all to correct in that analysis.

The essential humanity of her most astute legal commentary is very much missed.

Kevin, I appreciate your in-depth coverage of what, unfortunately, is the gist of the ongoing kabuki (the “appearance”, rather than substance, of concern and the alleged “intent” of meaningful legislative or judicial “oversight”), as its like is not to be found elsewhere.

Brennan appeared to rebut this suggestion by saying, “A court of law is used to determine one’s guilt or innocence for past actions, which is very different from the decisions that are made on the battlefield as well as actions that are taken against terrorists, because none of those actions are to determine past guilt for those actions that they took. The decisions that are made are to take action so that we prevent a future action, so we protect American lives.”

Welcome to the Department of Pre-Crime. As we’ve seen over and over again, the DOJ, Pentagon, CIA, etc don’t have precogs in their employ and continually are wrong about who is and isn’t a terorist. Also Obama’s actions are reminscent of the Sun King exercising such unilateral powers of life and death over people.

If judges are concerned about being the one tasked with deciding who lives and who dies, that does not indicate it is a power that should remain in the control of the executive. It means it is a power that, perhaps, no president or agency in the Executive Branch should be able to wield.

It shouldn’t be a power any human being should be able to wield – period. Do Amerikans really believe this “killing” will be strictly for those “furriners.” The kill list, drones, and now the “court of death” are for us too. Remember terrorists are everywhere – except apparently no terrorists exist in the US government. Oh the hypocrisy!

The issues raised–as disturbing as they are–go far beyond those of an assassination program. The reasoning of preemptive war is this same concept writ large. The reason this disturbs more than a preemptive war where the ‘collateral damage’ numbers of dead innocents in the hundreds of thousands, like attacking Iraq based on lies, is probably the scaling down and personalization of the targeting. To repeat or paraphrase a common Stalin misattribution, “One death is a tragedy, a million deaths are a statistic.”

Our protection and legal indemnification time and again of far greater mass-murderers operating from the Oval Office–and particularly so as the Congress has completely abdicated its responsibility for declarations of war as a precondition of initiating large scale murder–has unfortunately established ample precedent for this small scale murder under color of state.

We–America–have become a rogue state unfettered by law or treaty. It will I fear take concerted action by a significant portion of the world to stop us from continuing as such.

I’m a great believer in the First Amendment and all, but I don’t think even hypothetical discussion of killing U.S. government officials belongs on Firedoglake.

Who was discussing? I simply made an analogy to Brennen’s imbecilic “criteria”, and just tried to show that it could be manipulated for ANY ONE. And frankly..I don’t give a shit. I certainly didn’t threaten anyone. Any one who can’t understand the difference here needs to take a big long breath, and ask an adult to explain to them, the consequences of DIANE FEINSTEIN’S acquiescence to the Federal Government’s murder program, why her questioning of Brennen was either monumental stupidity, or plain subservience to covering up what now appears to be a massive attempt to posthumously “legalize” the murder of 3 American citizens, and then tell me why I should SHUT THE FUCK UP. These subhuman psycopathic murderer’s are doing everything in their power to cover up for fucking WAR CRIMES. If firedoglake can’t handle “my” two cents, then by all fucking means…I’ll move on to where they CAN.

What If an Assassination Court Reviewed Placement of US Citizens on the President’s Kill List?

What if we did away with the Bill of Rights to the Constitution of the United States without bothering with the amendment process that said COTUS specifies?

<The Preamble to The Bill of Rights (Of course, the preamble to the B of R is not part of the COTUS.)

Congress of the United States
begun and held at the City of New-York, on
Wednesday the fourth of March, one thousand seven hundred and eighty nine.

THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.

RESOLVED by the Senate and House of Representatives of the United States of America, in Congress assembled, two thirds of both Houses concurring, that the following Articles be proposed to the Legislatures of the several States, as amendments to the Constitution of the United States, all, or any of which Articles, when ratified by three fourths of the said Legislatures, to be valid to all intents and purposes, as part of the said Constitution; viz.

ARTICLES in addition to, and Amendment of the Constitution of the United States of America, proposed by Congress, and ratified by the Legislatures of the several States, pursuant to the fifth Article of the original Constitution.

Amendment I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Amendment II

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Amendment III

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

Amendment IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Amendment V

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Amendment VI

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Amendment VII

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Amendment X

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Please remember that, from time immemorial until 2001, “war” was something waged by nations and only nations. Not by an individual or ay a group of individuals. Dummya did not single-handedly alter that by getting Congressional approval to fight a so-called “war on terror.”

If some President had gotten Congress to approve a war on the mafia, for example, that would not have made that a real war, giving rise to CIC powers, anymore than the War on Drugs or the War on Poverty were real wars giving rise to CIC powers. You do not convert crimes by individuals into wars, controverting the understanding that prevailed throughout human history, by playing word games.

We are not at war with Iraq (and supposedly were not at war with Iraq after we captured Saddam, if ever). We are not at war with Afghanistan, a nation ruled, for quite a few years now, by the corrupt puppet whom we installed and help keep in power.

And we are not at war with an emotion called terror, or with Pakistan or with Yemen or any other nation in which someone we may suspect happens to turn up.

Excellent point about the Constitutional prohibition against bills of attainder.

Then again, a Democratic Congress, as well as a Democratic President who purports to be a Constitutional scholar and who worked with ACORN to register voters in advance of his own run for the Illinois Legislature, , have already ignored that provision when they hastily enacted a bill to put ACORN out of the business of registering voters in poorer neighborhoods.

A judge did later declare that unconstitutional. However, the government did not, in that case, raise national security. Many judges will fold when another branch of the federal government claims to be doing something in order to keep the public safe. And, with some reason. Among other things, it is not their area of expertise, no one elected them, and the consequences, if the government is correct and the judge is wrong are horrific and not reversible on appeal.

No. The FISA court rubber-stamped all but 4 (iirc) cases in its history, until George W. Fucknut came in and bypassed it because it was apparently too much of a bother. Assassination orders are elements of dictatorships, regardless of oversight.

Assassinate U.S. citizens? Allow me to refer those not old enough to remember or those old enough, but who can’t handle the cognitive dissonance, to November 22, 1963. Even Firedoglake, as fine as it is, will not confront this bleeding sore..

Perhaps we all need to take a deep breath; I wasn’t telling anyone to STFU, it was just my first reaction to the line I quoted. It sounded to me as if you were suggesting that someone might want to take out Feinstein, and that doing so would be met with approval. If I misinterpreted your remark, then I apologize.